Tripura High Court
Smt. Debashri Chakraborty vs The State Of Tripura & Others on 18 December, 2019
Author: Akil Kureshi
Bench: Akil Kureshi
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.562/2019
Smt. Debashri Chakraborty, W/O Shri Sushanta Chakraborty,
Resident of East Pratapgarh, P.S.-East Agartala, District-West
Tripura.
----Petitioner(s)
Versus
The State of Tripura & others
-----Respondent(s)
For Petitioner(s) : Mr. P. Roy Barman, Advocate, Mr. Samarjit Bhattacharjee, Advocate, Ms. A. Debbarma, Advocate.
For Respondent(s) : Mr. Debalay Bhattacharjee, G.A. HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI Date of hearing and judgment: 18th December, 2019.
Whether fit for reporting : YES.
JUDGMENT & ORDER(ORAL)
Heard learned counsel for the parties for final disposal of the petition.
2. Petitioner has challenged an order dated 11.02.2019 by which her application for appointment on compassionate grounds came to be rejected. The petitioner has also challenged a notification dated 19.05.2017 issued by the Government of Tripura declaring that married daughters under no circumstances shall be covered within the purview of the die-in-harness scheme. According to the petitioner this clause is unconstitutional and discriminatory and the petitioner, therefore, has prayed this portion of the said notification be quashed.
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3. Brief facts are as under:
Smt. Anita Chakraborty, mother of the petitioner, was working as a Group-D staff in the office of the Superintendent of Police (Procurement) under the Department of Home, Government of Tripura. While in service she expired on 07.11.2016. Incidentally the petitioner‟s mother was appointed on compassionate grounds since her husband who was also a Government servant, had died while in service. The deceased had left behind two daughters including the present petitioner. The petitioner applied to the Government on 28.06.2017 for being appointed on compassionate grounds as per the die-in-harness scheme of the Government.
Since the respondents did not decide the application of the petitioner, she filed WP(C) No.1136 of 2018 before this Court. The learned Single Judge disposed of the petition by an order dated 07.12.2018 requiring the respondents to consider the said application expeditiously and to dispose of the same.
4. The respondents thereupon passed the impugned order dated 11.02.2019 relevant portion of which reads as under:
"Whereas, the Home Department, Government of Tripura has examined the representations submitted by Smt. Debashri Chakraborty and also the Notification dated 19.05.2017 of the General Administration (P&T) Department which remained effective w.e.f. 26.12.2015 and wherein it appears in the aforesaid Notification dated 19.05.2017 that the married daughter(s) under any circumstances shall not come under the purview of the die-in-harness scheme Page 3 of 18 AND Now, therefore the State Government has decided not to consider the representations submitted by the petitioner Smt. Debashri Chakraborty w/o Shri Sushanta Chakraborty resident of East Pratapgarh, PS-East Agartala, PO-Pratapgarh, Agartala, West Tripura for providing her Government job under die-in-harness scheme as the aforesaid petitioner is a married woman and is not eligible for obtaining Government job under the die-in-harness scheme."
5. The sole ground for rejection of the petitioner‟s application for appointment on compassionate ground thus was that as a married daughter of the deceased Government servant the petitioner was not eligible for such appointment. In this context, reliance was placed on the said notification dated 19.05.2017 which specifies that under no circumstances a married daughter would come within the purview of the die-in-harness scheme.
6. Under these circumstances, the petitioner has challenged the said order dated 11.02.2019 and a portion of the said notification dated 19.05.2017. Appearing for the petitioner, learned counsel Mr. P. Roy Barman submitted that the original scheme of compassionate appointment formulated under notification dated 26.12.2015 did not exclude a married daughter from the purview of the scheme. The amendments made in the said scheme by the subsequent notification dated 19.05.2017 could not be applied retrospectively. Since the mother of the petitioner had died on 07.11.2016, her application was governed by the scheme Page 4 of 18 formulated under the notification dated 26.12.2015. Alternatively, it was contended that the provision in the notification dated 19.05.2017 to the effect that a married daughter under no circumstances would come within the purview of the scheme is unconstitutional, arbitrary and discriminatory. In this context, counsel has relied on several decisions of different High Courts, reference to which would be made at an appropriate stage.
7. On the other hand, learned Government Advocate opposed the petition contending that the die-in-harness scheme of 26.12.2015 itself did not cover the case of a married daughter. The provisions made in the notification dated 19.05.2017 in this respect are only clarificatory in nature. He defended the terms of the said scheme contending that the same are not in any manner unconstitutional.
8. We may first take into account the relevant provisions of the said two notifications. Under notification dated 26.12.2015, the State of Tripura had framed a die-in-harness scheme which would be in supersession of all earlier instructions in this respect. The object of the scheme was as under:
"OBJECT:- The object of the Scheme is to extend benefits either by an appointment in Government service on compassionate ground or admissible Financial Assistance to an eligible dependant member of family of a deceased Government servant in the event of death while in service provided that there is no earning member in the family of the deceased. The intention is to relieve the family of the Page 5 of 18 Government servant from financial destitution and to help it get over the financial hardship. Employment would be provided to one of the eligible dependents of the deceased Government servant."
9. As per paragraph-1 of the notification the scheme would be applicable to the dependent family members of the Government servant working under the State Government as also teaching and non-teaching employees of the Privately Managed Government Aided Schools. Paragraph-2 defined the term "Dependent family member" as under:
"2. Dependent family member shall cover the following-
(i) wife or husband, as the case may be;
(ii) legitimate children;
(iii) legitimate step Children;
(iv) adopted Children;
(v) dependent daughter-in-law;
(vi) dependent parents;
(vii) dependent unmarried brother(s);
(viii) dependent unmarried sister(s) and
(ix) dependent widowed daughter(s).
Provided that a married son or daughter-in- law or widowed daughter, if he/she lives/used to live separately from other members of the family on or before the death of the Government employee shall not be considered as family member and at the same time he/she shall not be treated as earning member of the family of the government employee for the purpose of providing benefits under the Scheme only."
10. The State of Tripura issued a further notification dated 19.05.2017 which was in partial modification of the previous Page 6 of 18 scheme dated 26.12.2015. This notification expanded the purview of the scheme to the Home Guards/Woman Guards/Border Wing Home Guards in addition to the existing categories of employees which were already covered under the previous scheme. The term "dependent family member" was also expanded in following manner:
"2. It has also been decided that the „dependent legally divorcee daughter(s)‟ of the deceased Government employee shall also be considered as family member of the deceased in addition to the existing members and thus Para-2 of the Die-in-harness Scheme issued vide even number dated 26/12/2015 is modified as hereunder:-
(i) Wife or husband, as the case may be;
(ii) legitimate children;
(iii) legitimate step children;
(iv) adopted children;
(v) dependent daughter-in-law;
(vi) dependent parents;
(vii) dependent unmarried brother(s);
(viii) dependent unmarried sister(s);
(ix) dependent widowed daughter(s) and
(x) dependent legally divorcee daughter(s) Provided that a married son or daughter-in-law or widowed daughter, if he/she lives/used to live separately from other members of the family on or before the death of the Government employee shall not be considered as family member of the family of the government employee for the purpose of providing benefits under the Scheme only. Married daughter(s) under any circumstances shall not come under the purview of Die-in-harness Scheme."Page 7 of 18
11. A combined reading of the said two notifications dated 26.12.2015 and 19.05.2017 would show that under the original notification the term "dependent family member" would cover besides others, legitimate children. This did not distinguish between married or unmarried son or daughter. The proviso to the said paragraph-2, however, provided that a married son or a daughter- in-law or widowed daughter if lives separately from other members of the family on or before the death of the Government servant, such person would not be considered as a family member. However, he shall also not be treated as an earning member of the family for the purpose of providing benefits under the scheme. In other words, by virtue of this proviso married son, daughter-in-law or a widowed daughter who lives separately from the deceased Government employee would not come within the purview of the term "dependent family member". At the same time, his earnings would not be taken into consideration for the purpose of granting benefit under the said scheme. Consequently, such a member would be completely delinked from the family of the deceased Government employee for the purpose of the scheme. This proviso would by implication provide that a married son, daughter-in-law or a widowed daughter who lives with the Government servant at the time of his death, would not be excluded from the purview of the term "dependent family member". By necessary implication, therefore, an intention in this scheme can be read on part of the policy framers not to cover a married daughter within the fold of Page 8 of 18 dependent family member, particularly if she did not live with the Government servant at the time of his death.
12. In the subsequent notification dated 19.05.2017 this term "dependent family member" has been further expanded and explained. Paragraph-2 of this notification clarifies that a divorced daughter of the deceased Government employee would also be considered as a family member in addition to the existing categories. The proviso to paragraph-2 of the scheme dated 26.12.2015 was modified by adding the following sentence:
"Married daughter(s) under any
circumstances shall not come under the
purview of Die-in-harness Scheme."
13. These modifications in the notification dated 19.05.2017 can at best be seen as clarificatory in nature. What was implied in the previous scheme has been made explicit. Irrespective of the date of death of the Government servant or the application for grant of compassionate appointment by the heir of the deceased Government servant, the position in my opinion, would not materially change. Since I find that the notification dated 19.05.2017 merely made certain clarifications in the existing scheme it is not necessary to decide whether any substantive change in such a scheme can operate with any retrospective effect.
14. This, however, does not bring an aid to the controversy since as noted, the petitioner has challenged the very root of the rejection of her application for appointment on compassionate Page 9 of 18 grounds namely, being a married daughter she would not come within the purview of the scheme. In this context, various High Courts have under similar circumstances held that any such distinction by the rule making body would be unconstitutional and violative of equality clause.
15. In case of Vimla Srivastava and others vs. State of U.P. and others reported in MANU/UP/2275/2015 Division Bench of Allahabad High Court considered a case where Rule 2(c)(iii) of Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 excluded a married daughter from the purview of the compassionate appointment scheme. The Court referred to several decisions of different High Courts and held and observed as under:
"23. Specifically in the context of compassionate appointments various High Courts have taken the view that a woman who is married cannot be denied entry into service on compassionate appointment merely on the ground of marriage. This view was taken by a learned Single Judge of the Karnataka High Court in Manjula vs. State of Karnataka, 2005 (104) FLR 271. The same view has been adopted by a Division Bench of the Bombay High Court in Smt. Ranjana Murlidhar Anerao vs. The State of Maharashtra where it was held that the exclusion of a married daughter for the grant of a retail kerosene license on the death of the license holder was not justifiable. The Division Bench of the Bombay High Court held as follows:
"This exclusion of a married daughter does not appear to be based on any logic or Page 10 of 18 other justifiable criteria. Marriage of a daughter who is otherwise a legal representative of a license holder cannot be held to her disadvantage in the matter of seeking transfer of license in her name on the death of the license holder. Under Article 19(1)(g) of the Constitution of India the right of a citizen to carry on any trade or business is preserved. Under Article 19(6) reasonable restrictions with regard to professional or technical qualifications necessary for carrying on any trade or business could be imposed. Similarly, gender discrimination is prohibited by Article 15 of the Constitution. The exclusion of a married daughter from the purview of expression "family" in the Licensing Order of 1979 is not only violative of Article 15 but the same also infringes the right guaranteed by Article 19(1)(g) of the Constitution."
24. The same view has been adopted by a learned Single Judge of the Madras High Court in S Kavitha vs. The District Collector. A learned Single Judge of the Kolkata High Court in Purnima Das vs. The State of West Bengal has held that while appointment on compassionate ground cannot be claimed as a matter of right, at the same time, it was not open to the State to adopt a discriminatory policy by excluding a married daughter from the ambit of compassionate appointment.
25. We are in respectful agreement with the view which has been expressed on the subject by diverse judgments of the High Courts to which we have made reference above.
26. During the course of submissions, our attention was also drawn to the judgment rendered by a learned Single Judge of this Court in Mudita vs. Page 11 of 18 State of U.P. The learned Single Judge while proceeding to deal with an identical issue of the right of a married daughter to be considered under the Dying-in-Harness Rules observed that a married daughter is a part of the family of her husband and could not therefore be expected to continue to provide for the family of the deceased government servant. The judgment proceeds on the premise that marriage severs all relationships that the daughter may have had with her parents. In any case it shuts out the consideration of the claim of the married daughter without any enquiry on the issue of dependency. In the view that we have taken we are unable to accept or affirm the reasoning of the learned Single Judge and are constrained to hold that Mudita does not lay down the correct position of the law.
27. In conclusion, we hold that the exclusion of married daughters from the ambit of the expression "family" in Rule 2 (c) of the Dying-in- Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution.
28. We, accordingly, strike down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules."
16. Learned Single Judge of Chhattisgarh High Court in case of Sarojni Bhoi vs. State of Chhattisgarh and others reported in MANU/CG/0273/2015 similarly struck down a clause in the policy for granting compassionate appointment which excluded a married daughter from its purview making following observations:
"28. Thus, from the aforesaid analysis, it emanates that institution of marriage is an important and basic civil right of man and woman and marriage Page 12 of 18 by itself is not a disqualification and impugned policy of the State Government barring and prohibiting the consideration of the married daughter from seeking compassionate appointment merely on the ground of marriage is plainly arbitrary and violative of constitutional guarantee envisaged in Article 14, 15 and 16(2) of the Constitution of India being unconstitutional.
29. As a fallout and consequence of aforesaid discussion, writ petition is allowed and consequently Clause 3(1)(c) of policy relating to compassionate appointment dated 10/06/2003 and Clause 5(c) of policy dated 14/06/2013 being violative and discriminatory to the extent of excluding married daughter for consideration from compassionate appointment are hereby declared void and inoperative and consequently the impugned order (Annexure-P/3) rejecting the petitioner's case for compassionate appointment is quashed. The respondents/State is directed to reconsider the claim of petitioner for being appointed on compassionate ground afresh in accordance with law keeping in view that her father died on 06/01/2011 and her application was rejected on 28/09/2011, preferably within a period of forty five days from the receipt of certified copy of order. No order as to cost(s)."
17. Similar issue came up for consideration before the Full Bench of Calcutta High Court in case of State of W.B. and others vs. Purnima Das and others reported in MANU/WB/0829/ 2017. The Full Bench considered the following question which was referred for its opinion:
"Whether the policy decision of the State Government to exclude from the zone of Page 13 of 18 compassionate appointment a daughter of an employee, dying-in-harness or suffering permanent incapacitation, who is married on the date of death/ permanent incapacitation of the employee although she is solely dependent on the earnings of such employee, is constitutionally valid?"
18. The Full Bench observed as under:
"105. We would end this part of the discussion with the following concluding remarks. The endeavour of Mr. Majumdar to support the policy decision of the Government based on marriage of the daughter bringing about a change of status and proving fatal for an appointment on compassionate ground, appears to proceed in oblivion of husbands harassing and torturing wives in ample measure and thereby creating a situation for the wives to withdraw from the matrimonial household and return to her paternal home, usually the first refuge of one in distress. Such situations are not uncommon in Indian conditions. A probable situation could arise where a lowly paid Government employee dies-in-harness leaving behind him his widow, mother, a minor child and one married daughter (having the requisite qualification for appointment either on a Group 'C' or Group 'D' post) as his surviving heirs, but such a married daughter for whatever reasons is abandoned or deserted by her husband and she comes back to the care of her father and is entirely dependent on the earnings of her father, when he suddenly passes away; although, the family passes the test of immediate need for relief in terms of the notifications/SCHEME but apart from the married daughter there is none in the family who is qualified for an appointment except such daughter. Should the marital status of the daughter, in such a case, stand in the way of her appointment? Upon marriage no Page 14 of 18 doubt a daughter is regarded as a member of her husband's family but in our view that by itself may not be determinative of whether she could be deprived of even the right to apply and be considered for compassionate appointment, the object of which has need and dependency as paramount considerations for making a departure from the procedure of recruitment in accordance with Articles 14 and 16 of the Constitution. It does not behove the State Government to take a policy decision which, in effect, would be seriously prejudicial to a class of women who may have earlier exercised their right of marriage. Article 15(3) empowers the State to make special provisions for women and there is no reason as to why on the face of such an enabling provision, the Government should at all put in place such a restriction. Despite the marriage of a daughter, the bond of a father/mother with such married daughter is never broken; she continues to live in the heart of her parents. We are ad idem with the view expressed by the Division Bench of this Court in Soleman Bibi (supra) that "a daughter undoubtedly acquires a new relationship on marriage. She does not however lose the old relationship; she remains a daughter. Once a daughter always a daughter: qua relationship she is a daughter before, during and after marriage". We are, thus, not persuaded to hold that once married, the dependency factor altogether ceases. Proceeding on such an assumption, in our humble view, would be a misadventure."
19. The Full Bench thereafter referred to various decisions of different High Courts taking a similar view and concluded as under:
"111. Our answer to the question formulated in paragraph 6 supra is that complete exclusion of married daughters like Purnima, Arpita and Kakali Page 15 of 18 from the purview of compassionate appointment, meaning thereby that they are not covered by the definition of 'dependent' and ineligible to even apply, is not constitutionally valid.
112. Consequently, the offending provision in the notification dated April 2, 2008 (governing the cases of Arpita and Kakali) and February 3, 2009 (governing the case of Purnima) i.e. the adjective 'unmarried' before 'daughter', is struck down as violative of the Constitution. It, however, goes without saying that after the need for compassionate appointment is established in accordance with the laid down formula (which in itself is quite stringent), a daughter who is married on the date of death of the concerned Government employee while in service must succeed in her claim of being entirely dependent on the earnings of her father/mother (Government employee) on the date of his/her death and agree to look after the other family members of the deceased, if the claim is to be considered further."
20. The Full Bench of Uttarakhand High Court was also confronted with the similar issue in case of Udham Singh Nagar District Cooperative Bank Ltd. & another vs. Anjula Singh and others and other connected matters decided on 25.03.2019. Following questions were referred for the opinion of the Full Court:
"(i) Whether any of the members, referred to in the definition of a "family" in Rule 2(c) of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (for short "the 1974 Rules") and in the note below Regulation 104 of the U.P. Co- operative Committee Employees Service Regulations, 1975 (for short "the 1975 Page 16 of 18 Regulations") would be entitled for compassionate appointment even if they were not dependent on the Government servant at the time of his death?
(ii) Whether non-inclusion of a "married daughter" in the definition of "family", under Rule 2(c) of the 1974 Rules, and in the note below Regulation 104 of the 1975 Regulations, is discriminatory, and is in violation of Articles 14, 15 and 16 in Part III of the Constitution of India?"
21. The questions were answered in following manner:
"65. Any person, who is a part of the "family"
of the deceased Government servant, would also be included within the said definition. Consequently, a "married daughter" would also fall within the definition of a "family" both in Rule 2(c) of the 1974 Rules, and under the note below Regulation 104 of the 1975 Regulations. Needless to state that the members of the "family" of the deceased Government servant in Clauses (i) to (iii) of Rule 2(c) of the 1974 Rules, and the note below Regulation 104 of the 1975 Regulations, which would include a "married daughter", would be entitled to be considered for compassionate appointment only if they were dependent on the Government servant at the time of his death, and satisfy all the other conditions stipulated in the 1974 Rules and the 1975 Regulations.
(v) Conclusion:
66. We answer the reference holding that:-
i. Question No.1 should be answered in the affirmative. It is only a dependent member of the family, of the Government servant who died in harness, who is entitled to be considered for Page 17 of 18 appointment, on compassionate grounds, both under the 1974 Rules and the 1975 Regulations.
ii. Question No.2 should also be answered in the affirmative. Non- inclusion of "a married daughter" in the definition of a "family", under Rule 2(c) of the 1974 Rules and the note below Regulation 104 of the 1975 Regulations, thereby denying her the opportunity of being considered for compassionate appointment, even though she was dependent on the Government servant at the time of his death, is discriminatory and is in violation of Articles 14, 15 and 16 in Part III of the Constitution of India.
iii. We, however, read down the definition of "family", in Rule 2(c) of the 1974 Rules and the note below Regulation 104 of the 1975 Regulations, to save it from being held unconstitutional. As a result a "married daughter" shall also be held to fall within the inclusive definition of the "family" of the deceased Government servant, for the purpose of being provided compassionate appointment under the 1974 Rules and the 1975 Regulations."
22. Lastly, we may notice that learned Single Judge of Calcutta High Court in case of Sulekha Gorain vs. The State of West Bengal & others in the decision dated 01.08.2019 followed the decision of the Full Bench in case of Purnima Das (supra) and held that a married daughter cannot be kept out of the purview of the scheme for compassionate grant of awarding a license for fair price shop.
23. In view of such decisions of various High Courts across the country and almost unanimity of opinion on the issue, I have no Page 18 of 18 hesitation in holding that the following portion of the notification dated 19.05.2017 is unconstitutional:
"Married daughter(s) under any circumstances shall not come under the purview of Die-in-harness Scheme."
24. Consequently, it is declared that the scheme of die-in- harness formulated by the State under notification dated 26.12.2015 as modified and clarified under notification dated 19.05.2017 would not exclude a married daughter from the purview of the scheme. In other words, even a married daughter would be entitled to make an application for appointment on compassionate basis which would be decided on its own merits within the parameters of the scheme. Resultantly, impugned order dated 11.02.2019 is set aside. The respondents are directed to consider the application of the petitioner afresh and dispose it of on merits. This shall be done within a period of 4(four) months from today.
25. With these observations, petition is disposed of.
Pending application(s), if any, also stands disposed of.
(AKIL KURESHI), CJ Pulak